Citation Nr: 0828777
Decision Date: 08/25/08 Archive Date: 09/02/08
DOCKET NO. 06-36 033 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Recognition of the appellant as the veteran's surviving
spouse for Department of Veterans Affairs (VA) benefits
purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
A. Willett, Associate Counsel
INTRODUCTION
The veteran had active service from February 1943 through
December 1945. He died in September 1984. This matter comes
before the Board of Veterans' Appeals (Board) on appeal from
a December 2005 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Buffalo, New York.
FINDINGS OF FACT
1. The appellant and the veteran were married in 1942, and
divorced in 1967.
2. When the veteran died in 1984, he was not married to the
appellant, and there is no evidence or argument that they had
attempted to remarry or enter a common-law marriage at any
time following their divorce.
CONCLUSION OF LAW
The criteria for recognition of the appellant as the
surviving spouse of the veteran have not been met. 38
U.S.C.A. §§ 101, 103 (West 2002); 38 C.F.R. §§ 3.1, 3.50,
3.55 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is seeking to establish herself as the
surviving spouse of the deceased veteran for VA benefits
purposes. A "spouse" is a person of the opposite sex whose
"marriage" to the veteran meets the requirements of 38 C.F.R.
§ 3.1(j). 38 C.F.R. § 3.50(a). "Marriage" means a marriage
valid under the law of the place where the parties resided at
the time of the marriage, or the law of the place where the
parties resided when the right to benefits accrued. 38
U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j).
To be recognized as the veteran's surviving spouse for the
purpose of establishing entitlement to VA benefits, the
appellant must be a person of the opposite sex who was the
spouse of a veteran at the time of the veteran's death, and
who lived with the veteran continuously from the date of
marriage to the date of the veteran's death (except where
there was a separation which was due to the misconduct of, or
procured by, the veteran without the fault of the spouse) and
has not remarried.
38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1).
The essential facts in this case are clear and not in
dispute. The appellant and the veteran were married in 1942,
and divorced in 1967. There is no evidence or argument that
they had attempted to remarry each other or enter a common-
law marriage. The appellant remarried another man in June
1970 and her husband died in July 2001. The veteran died in
1984.
The appellant argues that they were married for twenty-five
years and that she took care of her family during his service
and endured his post-service mental problems, and that their
divorce was caused and necessitated by the veteran's
promiscuity. See December 2005 notice of disagreement. The
evidence on file supports these arguments, but it is not
relevant to the issue that is to be addressed in this case.
The question here is whether the appellant was the spouse of
the veteran at the time of his death and who lived with the
veteran continuously from the date of the marriage to the
date of the veteran's death, and has not remarried. If the
appellant had not remarried and had still been married to the
veteran at the time of this death, the evidence of fault on
the veteran's part would be relevant.
A separation between a lawfully married veteran and spouse at
the time of the veteran's death may be excused if the
separation was caused by the veteran's bad behavior.
38 C.F.R. § 3.50(b)(1). However, a divorce is not the same
as a separation. Once divorced, for any reason, a spouse may
not be recognized as a surviving spouse for VA benefit
purposes. 38 C.F.R. § 3.50(b). Also, in this case, the
appellant remarried in June 1970, which also precludes her
from being recognized as the veteran's surviving spouse.
38 C.F.R. § 3.50(b)(2). She, at no time after the January
1967 divorce lived with the veteran, which also precludes her
status as the surviving spouse. 38 C.F.R. § 3.50(b)(1).
There is no legal basis upon which to recognize the appellant
as the veteran's surviving spouse.
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In
this case, such notice and assistance is not required because
the issue presented involves a claim that cannot be
substantiated as a matter of law. See Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (where the law and not the
evidence is dispositive the Board should deny the claim on
the ground of the lack of legal merit or the lack of
entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004)
(VA is not required to provide notice of the information and
evidence necessary to substantiate a claim where that claim
cannot be substantiated because there is no legal basis for
the claim or because undisputed facts render the claimant
ineligible for the claimed benefit).
ORDER
The appellant may not be recognized as the veteran's
surviving spouse for VA benefit purposes, and the appeal is
denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs